The arbitration in the Suncor matter began on January 2, 2013 after being postponed at the request of local union president, Roland LeFort, for unspecified personal matters before the holidays. The hearing is expected to extend over the next few months.

The case dates back to October 2012, when the union was successful in obtaining an injunction from Alberta’s Courts preventing Suncor from rolling out a new random drug and alcohol testing policy for its employees at its oil sands operations in Fort McMurray. In November 2012, Alberta’s Court of Appeal, in a split decision, upheld the injunction in light of the upcoming arbitration.

The employer, Suncor, is arguing that random drug and alcohol testing for all employees is needed, saying that three of the seven deaths at its operations in Alberta since 2000 involved workers under the influence of alcohol or drugs. The union, on the other hand, is arguing the policy would violate the privacy and dignity of employees, as well as the terms of their collective agreement.

On December 7, 2012, the Supreme Court of Canada heard the appeal in the Irving case. The employer argued for the right to conduct random alcohol tests at its mill operations in New Brunswick. A decision is expected in the coming months.

The current landscape

In Canada, random testing of employees in safety sensitive positions remains contentious and will likely be the subject of a challenge if termination of employment results from a positive test. While there is some authority in Canada to suggest that random “alcohol” testing is permitted in certain unique circumstances, the same cannot be said for random “drug” testing.

Inconsistent rulings by Courts, labour boards and human-rights tribunals across Canada have led to confusion on the law relating to random testing of all employees for the prevention of workplace accidents beyond the “safety sensitive” positions. The Suncor and Irving cases are expected to shed light on the issue.

As the hearing gets underway, we will continue to monitor and blog about any developments.